KATOA v POLICE [2023] NZHC 1987

KATOA v POLICE [2023] NZHC 1987 [27 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000233CRI-2023-404-000234[2023] NZHC 1987IN THE MATTER OF an appeal against sentenceBETWEEN SIONE KATOAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2023Appearances: E M Gresson for AppellantB A Mugisho for RespondentJudgment: 27 July 2023JUDGMENT OF EDWARDS JThis judgment was delivered by me on 27 July 2023 at 4.00 pm.Registrar/Deputy RegistrarCounsel/Solicitors:E M Gresson, AucklandKayes Fletcher Walker (Crown Solicitor at Manukau), Auckland[1] Mr Katoa was sentenced to 23 months' imprisonment and disqualified fromdriving for 13 months for the following charges:1(a) 1 x assaults with intent to injure (manually);2(b) 1 x disorderly behaviour likely to cause violence;3(c) 1 x possessing knife in public place;4(d) 2 x driving with excess breath alcohol;5 and(e) 2 x driving while disqualified.6[2] He appeals his sentence on the basis that the District Court Judge erred in notcommuting that sentence to home detention.Offending[3] The offending fell into two groups. The first three of the above charges aroseout of offending on 18 November 2021. The remaining charges arose on 3 Novemberand 13 December 2022 respectively.Events of 18 November 2021[4] At approximately 8.00 pm on 18 November 2021, Mr Katoa and an associatewere walking on Massey Road. They had been drinking and were intoxicated. Thevictim, who was unknown to them, was also walking on Massey Road.1 New Zealand Police v Sione Katoa [2023] NZDC 8109.2 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.3 Summary Offences Act 1981, s 3; maximum penalty three months' imprisonment or a fine notexceeding $2,000.4 Summary Offences Act 1981, s 13A; maximum penalty three months' imprisonment or a fine notexceeding $2,000.5 Land Transport Act 1998, ss 56(1) and (4); maximum penalty two years' imprisonment or a finenot exceeding $6,000.6 Land Transport Act 1998, ss 32(1)(a) and (3); maximum penalty three months' imprisonment or afine not exceeding $4,500.[5] When the defendants came across the victim, they attacked him. The victimwas knocked to the ground and the defendants began to punch and kick him as he laythere.[6] A member of the public intervened and stopped the assault by pulling thedefendants away from the victim. This allowed the victim to stand. However, thedefendants began punching him again. When the victim fell to the ground, Mr Katoakicked him and stomped on his head.[7] The same member of the public intervened and the victim fled down analleyway. The defendants chased him. At some stage during the attack, Mr Katoaproduced a pocketknife.[8] The Police arrived. The defendants ran away, but were eventually located andarrested. When searched, Mr Katoa was found to be in possession of the pocketknife.[9] The victim had multiple injuries, including lacerations, contusions, andabrasions to his face, head, arms, body, and legs.Events of 3 November 2022 and 13 December 2022[10] The driving offences on 3 November 2022 and 13 December 2022 arose whenMr Katoa was subject to bail conditions for the first group of offences. He was alsodisqualified from driving at this time.[11] At approximately 9.30 am Mr Katoa was stopped in his vehicle andbreathalysed. His test returned a reading of 741 mg of alcohol per litre of breath. Atthe time, he was indefinitely disqualified from driving.[12] On 13 December 2022, at approximately 8.00 pm, Mr Katoa was stopped bypolice due to speeding. His excess breath alcohol level was 546 mg of alcohol perlitre of breath.District Court sentence[13] Mr Katoa pleaded guilty to all charges and appeared in the District Court atManukau on 27 April 2023 for sentencing.[14] After referring to the circumstances of the instant offending, the Judge outlinedMr Katoa's prior offending in 2015 and 2019:(a) In 2015, Mr Katoa was sentenced to three years' imprisonment forwounding with intent to injure, aggravated robbery and commonassault. This offending took place in 2013. Mr Katoa was 19 years ofage at the time. Mr Katoa and his associates were intoxicated. Theyhappened upon the victim who was walking past and attacked androbbed him. Later, Mr Katoa punched another person in the head.(b) In 2019, Mr Katoa was sentenced to eight months' home detention forinjuring with intent to injure, assaulting police, and resisting police.The Judge said that the starting point of 19 months' imprisonment forthe 2019 offending gave an indication of the seriousness of thatoffending.[15] The Judge went on to say that she did not consider intensive supervision andcommunity detention, recommended in the pre-sentence report, to be anywhere closeto adequate for the type of behaviour Mr Katoa has displayed both in the past and onthis occasion.[16] The aggravating features identified by the Judge were: the attack to the victim'shead; the fact that there were multiple attackers; the degree of violence including astomp to the head; the pursuit of the victim even after someone tried to intervene; andthe production of a weapon in the context of this violent offending.[17] The Judge considered the offending fell into band 2 of Nuku v R7 which is aguideline case for more serious charges of injuring with intent to injure, but said shewould adjust for the fact that the assault with intent to injure charge attracted a lowerpenalty. A starting point of 24 months' imprisonment was adopted.[18] For the driving offences, the Judge considered an uplift of 10 months wasappropriate. This was further uplifted by four months' imprisonment to account forMr Katoa's history of violence and the fact that the offending occurred while he wason bail.[19] The mitigating factors identified by the Judge included the fact that Mr Katoawas engaging with counselling; showed insight into contributing factors of offendingbehaviour; had completed an alcohol and drug rehabilitation programme. Credit wasalso given for guilty pleas. In all, the Judge awarded a 25 per cent discount for guiltypleas and 15 per cent for rehabilitation and remorse. This made a total discount of 40per cent.[20] Before undertaking the final calculation, the Judge acknowledged that the end-sentence could come within the range of home detention, but that the sentence wouldultimately be a term of imprisonment. This reflected the fact that past sentences ofhome detention had not deterred Mr Katoa from abusing alcohol and behavingviolently.[21] The uplift of 14 months for aggravating factors brought the starting point to 38months' imprisonment. From this, 40 per cent was discounted (15 months) whichresulted in an end sentence of 23 months' imprisonment. Mr Katoa was disqualifiedfrom driving for 13 months on the driving related charges.Legal framework[22] Under s 15A of the Sentencing Act 2002, a court may only impose a sentenceof home detention if:7 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.(a) The purpose for which sentence is being imposed cannot be achievedby any less restrictive sentence or combination of sentences; and(b) The Court would otherwise sentence the offender to a short-termsentence of imprisonment.[23] A sentencing Judge must make a "considered and principled choice" betweenhome detention and imprisonment recognising that both sentences serve the principlesof denunciation and deterrence. The obligation is to impose the least restrictivesentence in the circumstances.8[24] As this Court and others have noted on several occasions, the sentence of homedetention carries with it significant deterrence and denunciation. It is not an easyoption.9[25] An appeal against sentence may only be allowed if the appellate court issatisfied that there has been an error in the sentence and that a different sentence shouldbe imposed.10 It is the end sentence which is the focus of the appellate court'sassessment, not the method by which it was reached.11[26] The standard of appellate review adopted in Tutakangahau12 applies todecisions not to commute imprisonment to home detention, as it does to any othersentence. In confirming that approach, the Court of Appeal in Palmer v R said:13[19] This change of approach is unlikely to make a difference in the result,because it is frequently difficult for an appellant to identify an error in a refusalto commute a short sentence of imprisonment to an equivalent term of homedetention, and any material error would normally have justified interventionunder the former approach. As William Young P pointed out in R v Vhavha,there is nothing in the Sentencing Act 2002 to suggest a presumption for oragainst commutation, either generally or for particular types of offence. Thedecision calls for the case by case exercise of judgment against the statutoryprinciples and purposes of sentencing. Those principles and purposessometimes point, as here, in opposing directions, meaning that the sentencingjudge is called upon to assess whether home detention can respond adequately8 Fairbrother v R [2013] NZCA 340 at [30]; Sentencing Act 2002, s 8(g), and s 16.9 R v Iosefa [2008] NZCA 453 at [41]; Duval v Police [2018] NZHC 393 at [32].10 Criminal Procedure Act 2011, ss 250(2) and 253.11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.13 Palmer v R [2016] NZCA 541 at [19].to the seriousness of the offending. As the Court explained in R v D(CA253/2008), it can be very difficult in a marginal case to articulate reasonsfor preferring one approach to another. In consequence, the margin ofappreciation extended to sentencing judges is usually significant.(footnotes omitted)Was the Judge wrong not to impose home detention?[27] There is no challenge to the starting point or the adjustments which contributedto the end sentence of 23 months' imprisonment. The sole question is whether theJudge was wrong not to commute the sentence to home detention.[28] Ms Gresson, for Mr Katoa, submits that the Judge did not sufficiently analysethe possibility of a home detention sentence. She points to the passages in the Judge'ssentencing notes which indicate that, prior to undertaking the sentencing calculation,the Judge said she would not be willing to "deal with Mr Katoa" by way of anythingother than a sentence of imprisonment. Ms Gresson submits that this implies a setstate of mind, and a predetermination against home detention.[29] I am not satisfied that there was any error in the Judge's approach. The Judgefollowed accepted sentencing methodology by assessing a starting point by referenceto the aggravating and mitigating (of which there were none) features of Mr Katoa'soffending. She considered the uplift for Mr Katoa's prior convictions and hisoffending while on bail, and his personal mitigating factors including his engagementin counselling, efforts towards rehabilitation, and credit for the guilty pleas.[30] The Judge then indicated that the starting point plus the uplift resulted in 38months' imprisonment, but Mr Katoa was entitled to a 40 per cent discount. It was atthis point that the Judge indicated that she would not be sentencing Mr Katoa to homedetention even if the calculation came to something less than 24 months'imprisonment. Although the calculation had not been formally undertaken by thisstage, the components of that calculation were already set. There was nopredetermination against home detention in this approach.[31] Moreover, it is clear from the Judge's sentencing notes that her reasons for notimposing home detention were due to the nature of the offending, and Mr Katoa's priorconvictions. Those convictions include the 2015 and 2019 convictions for violentoffending in which alcohol had played a part. They also include convictions for breachof home detention conditions on two separate occasions in 2019.[32] Ms Gresson is critical of the weight that the Judge placed on Mr Katoa's priorconvictions, particularly those from 2015 and 2019. She submits that the Judgeappeared to equate the offending the subject of those convictions with the presentoffending despite the more serious charges the prior offending attracted. Furthermore,Ms Gresson submits that the sentencing notes from the prior convictions were notbefore defence counsel, and accordingly there was no opportunity for the defence toanswer any prejudicial aspects arising from those notes. This, it is submitted, was anunfair approach leading to an error by the sentencing Judge.[33] It is regrettable that the sentencing notes were not before defence counsel atthe time of sentencing. However, Ms Gresson has now had an opportunity to see thosenotes and make submissions on appeal. There is nothing she has said on appeal thatpersuades me that the Judge's assessment of the offending in 2015 and 2019 was inerror. The Judge did not equate the seriousness of the historical offending with thatbefore the Court. Rather, the similarities in the past offending (such as the impact ofalcohol and the violence inflicted) were noted with the point being that past sentencesfor similar offending had not deterred Mr Katoa from offending in the same way again.[34] Ms Gresson submits that as there had already been an uplift from the startingpoint for the prior convictions, the reliance on the previous offending history to declinecommuting a sentence of home detention amounted to "double counting".[35] I do not consider Mr Katoa's previous convictions were accorded improperweight or double-counted in the circumstances. The convictions were relevant todetermining the end sentence of imprisonment and were reflected in the uplift applied.But those prior convictions were also relevant to the assessment of whether homedetention was an appropriate sentence and whether it met the purposes and principlesset out in ss 7 and 8 of the Act. The convictions are relevant at both stages, albeitassessed through a different lens.[36] I consider the Judge was right to take into account Mr Katoa's priorconvictions. As already noted, they tended to indicate that prior sentences ofimprisonment and home detention had not been effective at deterring Mr Katoa fromoffending in the same way again. Not only is that relevant to the principle ofdeterrence but it also engages the protection of the community in determining the end-sentence. The Judge considered that these factors meant that a sentence less thanimprisonment could not be justified. I do not consider she was wrong to reach thatconclusion.[37] Finally, Ms Gresson submits that the Judge demonstrated "a clear reluctanceto consider the factors put forward in the [pre-sentence] report". She says there wasno attention to Mr Katoa's reported insight, nor to the report writer's assessment ofMr Katoa's ability to comply with a community-based sentence as "high", or his riskof reoffending and causing harm to the community assessment as "medium".[38] While there was no specific reference to the pre-sentence report, I am satisfiedthat the Judge had regard to the factors canvassed in that report. She specifically tookinto account Mr Katoa's engagement in counselling and his expressions of insight,including his completion of an alcohol and drug rehabilitation programme. She notedthat Mr Katoa had a young family and that while his wife would find it difficultwithout her husband for a period of time, she had family support. The Judge expresslynoted that she had taken into account all submissions made by Ms Gresson that dayand given as much weight as she could for the mitigating factors.[39] The steps Mr Katoa has taken towards his rehabilitation are to be commended.They are pointing in the right direction. It is clear, however, that he has a long way togo. Alcohol appears to be a significant offending related factor, and Mr Katoa hasundertaken courses before. There will need to be a substantial commitment toaddressing these issues over the long term if the risk of re-offending is to be mitigated.Overall, Mr Katoa's rehabilitative efforts do not outweigh the need for a deterrentresponse to the offending. The discount allowed by the Judge was adequate in thecircumstances.[40] It follows that I am not satisfied that the Judge erred in her decision to declineto commute the sentence to one of home detention, and the appeal must be dismissed.Result[41] The appeal is dismissed._________________Edwards J